Citation Nr: 1540447
Decision Date: 09/21/15 Archive Date: 10/02/15
DOCKET NO. 14-10 882 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUE
Entitlement to an initial rating in excess of 10 percent for migraine headache.
REPRESENTATION
Appellant represented by: Military Order of the Purple Heart of the U.S.A.
ATTORNEY FOR THE BOARD
M. Young, Counsel
INTRODUCTION
The Veteran served on active duty with the Army National Guard from January 2005 to February 2006; she had active duty for training (ACDUTRA) from June 2004 to September 2004, and periods of inactive duty for training (INACDUTRA). This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). That rating decision, in pertinent part, granted service connection for migraine headache and assigned a 0 percent rating effective January 11, 2012 (date of claim). An interim (March 2014) rating decision increased the rating to 10 percent from the date of claim.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Board finds that a remand in this case is necessary to complete needed additional development. The record shows the Veteran was last examined in May 2012 (by VA). In her April 2014 Substantive Appeal (VA Form 9) she noted that her headaches have worsened "to the point where when I get one of the headaches it completely shuts me down until I can get my medication and get rid of it which last approximately 3 to 4 day[s]." The 2012 examination noted duration of head pain was less than one day.
While a new examination is not required simply because of the time which has passed since the last examination (May 2012), VA's General Counsel has indicated that a new examination is appropriate when there is an indication of an increase in severity since the last examination. See Green v. Derwinski, 1 Vet. App. 121 (1991); VAOPGCPREC 11-95 (1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Therefore, a new VA examination is needed to determine the current severity of the Veteran's service-connected lumbar spine disability.
The record indicates the Veteran receives continuing treatment from VA for her headache disability. As VA medical records are constructively of record and must be obtained, the RO should obtain all updated records. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following action:
1. The AOJ should associate with the record any outstanding VA and private treatment records pertaining to the Veteran's headache disability.
2. Thereafter, the AOJ should arrange for the Veteran to be afforded an appropriate examination to determine the current severity of her service-connected headache disability. The entire record must be reviewed by the examiner in conjunction with the examination. Specifically, the examiner is requested to describe in detail all functional loss associated with the Veteran's migraine headaches, to include limitations of activities of daily living and occupational functioning.
The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as deemed appropriate.
3. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and her representative opportunity to respond. The case should then be returned to the Board, if in order, for further review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).